Immigration Issues in the Hospitality Industry: A Global Perspective. Thursday, October 23, 2014

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2 Immigration Issues in the Hospitality Industry: A Global Perspective Thursday, October 23, 2014

3 Moderator J. Bruce Cross, Director, Cross, Gunter, Witherspoon and Galchus Little Rock, Arkansas, USA 2

4 Speakers Misty W. Borkowski, Attorney Cross, Gunter, Witherspoon and Galchus Little Rock, Arkansas, USA Richard Emmerson, Senior Advisor SSEK Legal Consultants Jakarta, Indonesia 3

5 Speakers Sara Khoja, Partner Clyde & Co. Dubai, United Arab Emirates Sascha C. Kuit, Senior Associate Boekel de Nerée NV Amsterdam, Netherlands 4

6 How Education, Job Title, and Experience Matter 5

7 U.S. Immigration Entry-Level Employee Limited options for entry-level workers H-2B (non-agriculture) temporary worker: Not enough U.S. workers who are able, willing, qualified, and available to do the temporary work Employer s need is considered temporary if it is a(n): o One-time occurrence o Seasonal need o Peak-load need o Intermittent need 6

8 U.S. Immigration Mid-Level Employee More options are available H-1B Specialty Occupation Position requires 4-year college degree (or equivalent) April 1 filing deadline for October 1 start date Period of time in status: o Visa is issue in 3-year increments o Can be extended for another 3-year period o Maximum of 6 years in U.S. on H-1 or L-1 status Amended petition required for change in position/ title/salary 7

9 U.S. Immigration Mid-Level Employee More options are available L-1B (Specialized Knowledge) of intra-company transferee FN worked at foreign entity for at least 1 year out of last 3 years Foreign and U.S. entity must be related (branch, subsidiary, etc.) 5 year maximum period o Visa can convert to L-1A 8

10 U.S. Immigration High-Level Employee L-1A (management, executive, supervisor) for intra-company transferee FN worked at foreign entity for at least 1 year out of last 3 years Foreign and US entity must be related (branch, subsidiary, etc.) 6 year maximum period Can lead to a fast track for Lawful Permanent Residency status 9

11 U.S. Immigration High-Level Employee B1/B2 Business visitor Visa, ESTA, VWP Limited scope of what business person can do Limited period of time allowed in U.S. is determined by consular officer admitting (and the country of citizenship is a factor) Ability to change status to new visa category may be limited Dual intent not allowed 10

12 U.S. Immigration High-Level Employee E-1/E-2 Treaty Trader/Treaty Investor 50% ownership required Nationality from treaty country 11

13 Asia Immigration General Information Indonesia Foreigners are eligible for work permits to perform certain specified types of jobs Other positions may require special recommendation letter from Ministry of Tourism The list of specified positions is now being updated Time limits apply depending on the position Actual work performed must be consistent with position stated in work permit Nationality is not relevant for citizens of countries with diplomatic relations 12

14 Asia Immigration General Information Australia / Hong Kong Various visas available to establish or manage a new or existing business Work permits available for workers who have recognised qualifications, and skills or experience, in particular occupations required by the country When employers cannot find an appropriately skilled local candidate New Zealand Similar to Australia but additional visa alternatives depending on type of work, job title, length of assignment, and qualifications/work experience 13

15 Asia Immigration General Information South Korea Long term visas available for employees of branch offices and subsidiaries if considered an indispensable specialist Short term visas may be available for lower level employees Thailand Likelihood of visa/work permit approvals increase with level of skill Minimum salaries apply depending on citizenship of applicant Visa/work permit renewals are readily available 14

16 Asia Immigration Entry-Level Employee Indonesia, Australia, Hong Kong, Thailand Work permits are not ordinarily available for low-level positions General principle: foreign workers must have special skills not available locally New Zealand Eligible for a 12-month open Working Holiday Visa to work for any employer in any position South Korea C-4 visa (short-term work up to 90 days) or E-7 visa (special occupations) may be available 15

17 Asia Immigration Mid-Level Employee Indonesia F&B Manager, Internal Affairs Manager, Rooms Division Manager: two years Sales Manager, Admin. Manager and Executive Assistant to Manager: closed Listed positions to be updated in an upcoming decree; unlisted positions may require recommendation letter from Ministry of Tourism New Zealand Essential Skills Work Visa Essential Skills in Demand List: updated regularly 16

18 Asia Immigration Mid-Level Employee Australia, Hong Kong Must have recognised qualifications, and skills or experience, in particular occupations required by the country When employers cannot find an appropriately skilled local candidate South Korea D7 long-term visas available for indispensable specialist for subsidiary For branch office, must also have worked at least one year for head office or affiliate 17

19 Asia Immigration High-Level Employee Indonesia Available for Director or General Manager: five years Australia, Hong Kong, Thailand Work permits available for business managers New Zealand Available - Note Essential Skills Demand List South Korea Available note distinction between branch and subsidiary 18

20 Europe Immigration General Each European country has its own admission policies and practices Having an EU residence card, visa, or work permit may not allow third-country national to reside/work in another EU country EU/EEA and Swiss nationals do not need a visa/ residence or work permit to reside and work in another EU/EEA member state 19

21 Europe Immigration General EU Directives seek to harmonise local immigration regulations EU Blue Card Single permit directive EU Intra Corporate Transfer Directive 20

22 Europe Immigration Entry-Level Employee Limited options for entry-level employees Many EU countries (e.g., France, Germany, the Netherlands, Spain) apply a national labour market assessment: A work permit will be issued in consideration of the national labour market situation No work permit will be granted if the job can be fulfilled by employment seekers on the national labour market No work permit/visa will be issued based on the type of role (e.g., UK) 21

23 Europe Immigration Entry-Level Employee Some countries apply a more open-market principle (e.g., Sweden) A work permit will be issued provided that the individual has a binding job offer of a local employment contract in line with applicable CLA or local practice and that the contractual salary is paid and enough to support him/herself A work permit exemption may apply for temporary work not exceeding 90 days (e.g., Bulgaria) A work permit exemption may apply for students/ exchange program visa holders 22

24 Europe Immigration Mid-Level Employee More options are available Role must meet prescribed skill level (e.g., UK, Germany) If employee is be assigned with supervision and coordination activities a work permit for six months can be issued (e.g., Bulgaria) There must be an entity of the company present and registered with the Immigration authorities (e.g., the Netherlands, Spain ) The salary must be at a certain level (depending on age) to qualify (e.g., the Netherlands) The company must be of a certain size or have made investments in the host country (e.g., Spain) 23

25 Europe Immigration High-Level Employee Same as for mid-level employees, plus: A work permit exemption may apply for business visits in most EU countries (often for a limited period of time, e. g., four weeks, 90 days), depending on role (representative of the company or key function) and/or activities performed EU Blue Card can be applied for in most EU countries Salary criteria depending on host country University education is required 24

26 Middle East Immigration Entry-Level Employee Any employee must be sponsored for work and residency by a local entity Sponsorship is employer specific Visa allocation and nationality Employment for nationals Type of visa 25

27 Middle East Immigration Mid-Level Employee Job title Degree certificates Earning requirements for sponsoring dependents 26

28 Middle East Immigration High-Level Employee Job title Degree certificates GM role 27

29 Termination of Foreign Nationals 28

30 Asia Range of Termination Systems Employment at-will jurisdictions No wrongful dismissal damages for termination without cause / notice Only basic employment standards benefits Rules on illegal terminations (e.g., discrimination) Wrongful dismissal regimes prior notice or pay in lieu of notice Indonesia - Labor Court approval unless settlement agreement Full salary until final and binding judgment 29

31 Indonesia: Substantial Termination Benefits Basic Severance Pay Maximum = 9 months for 9+ years service OR double Service Pay Maximum = 10 months for 24+ years Compensation Health and housing allowance Untaken Annual Leave Relocation Expenses, if applicable Additional benefits, if any, under contract Employer controls mandatory departure from Indonesia by Exit Permit application 30

32 Australia: Termination of Foreign Nationals Threshold assumption: National System Employee under Fair Work Act (as distinguished from State System Employees) Before termination, consider the employee s contract, National Employment Standards, and any applicable industrial instrument 31

33 Australia: Termination of Foreign Nationals Potential remedies for an employee Unfair dismissal under the Fair Work Act General protections under the Fair Work Act Discrimination under state or federal equal opportunity laws Breach of contract under common law Some employees are not eligible to sue for unfair dismissal Employed less than six months (or one year if employer has fewer than 15 employees) Genuine redundancy and employer has complied with its redeployment and consultation obligations Employees not covered by an industrial instrument and paid more than $133,000/year 32

34 Asia Termination of Foreign Nationals New Zealand Key distinction between open work permit and work permit linked to a specific employer Employer-specific work permit can be amended upon application Hong Kong No distinction between terminating locals and expatriates Comply with notice requirements under contract Avoid prohibited grounds of discrimination 33

35 Asia Termination of Foreign Nationals South Korea If employment term exceeds two years, the employee must be a regular, full-time employee Full-time employees can only be terminated for just cause under the Labor Standards Act ( LSA ) Minimum 30 days prior written notice of termination to employees, or pay in lieu Statutory minimum separation pay applies to all terminations, including with cause; certain exceptions apply Executives and senior managers are not considered employees under LSA 34

36 Asia Termination of Foreign Nationals Thailand Termination for cause is narrowly defined Severance from one to nine months based on a tariff, depending on period of service Notice or pay in lieu of notice applies Additional damage for wrongful dismissal may apply Relocation allowance if applicable 35

37 Europe Termination of Foreign Nationals Check: Rights and obligations under the individual s employment contract and/or assignment letter Local statutory employment rights Rights deriving from applicable (general binding) Collective Labour Agreement Which law governs the employment contract 36

38 Europe Termination of Foreign Nationals In most jurisdictions no distinction between expats and local employees Contractual notice period applies If none, then statutory default (UK) If none, then statutory notice period applies (the Netherlands) Process to follow Grounds for termination (e.g., redundancy, performance, misconduct) 37

39 Europe Termination of Foreign Nationals Statutory or contractual redundancy pay To be accrued after period of time (UK) Depends on age, length of service, salary (Greece, the Netherlands) Prohibitions to give notice (e.g., during sickness or pregnancy?) Employee protection against unfair dismissal? (reason and process determine if employee is unfairly dismissed in UK) 38

40 Europe Termination of Foreign Nationals Obligation to inform immigration authorities/ employment board of termination (Greece, Bulgaria, the Netherlands) Entitlements for employee to remain and work in the country 39

41 Middle East Termination of Foreign Nationals Sponsorship Unfair dismissal Repatriation 40

42 U.S. Termination of Foreign Nationals Termination of foreign nationals on visa: Employer required to pay reasonable cost of travel to home country U.S. laws govern wage and hour pay of ANY employee working within the U.S. 41

43 U.S. Termination of Foreign Nationals U.S. laws prohibit discrimination of employees based upon a protected status National origin Race Religion Gender Age Disability 42

44 Is the Relocated Employee Subject to the Laws of the Home Country, Host Country, or Both? 43

45 Europe Choice of Law or Venue Choice of law in employment contract/ assignment letter The Rome I Regulation European Directive on Secondments Local (general binding) CLA European tax and social security conventions Directives bilateral tax and social security treaties 44

46 Europe Choice of Law or Venue Rome I Regulation Contract will be governed by the law that was chosen Regardless of contractual choice of law, employee will not lose protection of the mandatory law that would apply if no choice was made; determined by: o Place where or from where employee habitually carries out the work o Place where employee is located o Place with which the contract is closest connected 45

47 Europe Choice of Law or Venue Rome I Regulation (cont d) Overriding mandatory local provisions may apply regardless the above applicable law (e.g., termination provisions in Greece, the Netherlands) 46

48 Europe Choice of Law or Venue European Directive on Secondments Specific for seconded employees Local mandatory rule regarding minimum employment standards will apply, such as: o Minimum wage o Working hours and working conditions o Holidays o Non-discriminations o Provisions of general binding CLA 47

49 Middle East Choice of Law or Venue Application of local law Secondment and assignment 48

50 U.S. Choice of Law or Venue Types of employment disputes: Breach of contract Wrongful termination Discriminatory hiring/promotion ADA claim Wage and hour violation 49

51 U.S. Choice of Law or Venue Employment contract: With specific jurisdiction With venue specified Arbitration clause No employment contract will U.S. law govern Nexus to jurisdiction/venue Can claim be pursued outside of US. 50

52 Indonesia Asia Choice of Law or Venue To obtain a work permit, all candidates must have local employment Local employment always governed by Indonesian law Secondment arrangements for expats Key objective: avoid Indonesian termination procedure and benefits Home employment, temporary secondment, return to home clause 51

53 Australia Asia Choice of Law or Venue Comprehensive employment laws cover minimum terms and conditions, work health and safety, discrimination, etc. Most employers regulated at the federal level under Fair Work Act, and National Employment Standards imposes 10 minimum conditions that apply to all employees covered by the FW Act Foreign employee working in Australia may be considered a national system employee covered by above legislation All levels of employees are protected by legislation; certain other types of awards may not apply to executives and senior managers 52

54 New Zealand Employment laws will apply regardless of employee's level, offence or employment agreement Notably, the Employment Relations Act, Holidays Act, Minimum Wages Act, Equal Pay Act and the Wages Protection Act South Korea Asia Choice of Law or Venue If governing law silent, the laws of Korea will govern If the parties otherwise validly select the laws of a foreign jurisdiction, the Labor Standards Act still apply 53

55 Hong Kong Parties have freedom to decide the governing law of the employment contract (provided there is sufficient connection with the chosen law) Employee cannot be given lesser benefits than those prescribed under Hong Kong law Thailand Asia Choice of Law or Venue Parties have the freedom to decide the governing law of the employment contract (provided choice of law is not contrary to public policy) Cannot contract out of statutory employment rights 54

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